Supreme Court May Consider Presidential Use of Recess Appointments of Federal Judges

Three federal appeals courts have ruled on the issue in the last several years, but the High Court has never considered the Constitutionality of the use of recess appointments. Recess appointments have been widely used by Presidents of both parties since the 1960s, but several considerations are up in the air. There are questions about whether the President can make recess appointments during the middle of Senate sessions or only at the intersession break in December and January. President Bush has made several intrasession appointments in addition to the typical intersession ones.

The three appellate court rulings have made broad interpretations of the Presidential power to circumvent the 'advice and consent' power of the Senate, and many Constitutional scholars question those decisions in light of the Constitutional requirements for checks and balances. The CSMonitor covers the topic in some depth in its 26 December online issue.